Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/726

702 ROMAN LAW [JTTS GENTIUM, KTC. judge being vested with full discretion to determine what was fair and equitable in each individual case. raetor- Praetorian Amendments on the Law of Succession. The most im- ubon- portant change in the law of succession during the latter half of the urn pos- republic was due to the praetors. They introduced, under the name ssio. of bonorum possessio, 1 what was really beneficial enjoyment of the estate of a deceased person without the legal title of inheritance. There is much to lead to the conclusion that the series of provisions in regard to it which we find in the Julian consolidation of the Edict were the work of a succession of praetors, some of them prob- ably not under the republic but under the empire ; but it will be convenient to give here a general view of the subject as a whole, disregarding the consideration that some of its features may not have oeen given to it within the period uow under notice. Justinian, speaking of the origin of bonorum possessio, observes that in promising it to a petitioner the praetors were not always actuated by the same motives ; in some cases their object was to facilitate the application of the rules of the jits civile, in some to amend their application according to what they believed to be the spirit of the XII. Tables, in others, again, to set them aside as in- equitable. It is not unreasonable to assume that it was with the purpose of aiding the jus civile that the first step was taken in what gradually became a momentous reform ; and it is extremely prob- able that this first step was the announcement by some praetor that, where there was dispute as to an inheritance, and a testament was presented to him bearing not fewer seals than were required by law, lie would give possession of the goods of the defunct to the heir named in it. 2 In this as it stands there is nothing but a regulation of possession of the bona of the inheritance pending the question of legal right. Just as between two parties contending about the owner- ship of a specific thing in a rei vindicatio the praetor first settled the question of interim possession, so did he promise to do here when a question was about to be tried about the right to an inheritance (si de hereditate ambigitur). It was a provisional arrangement merely, and very necessary in view of the state of the law which permitted a third party, apart from any pretence of title, to step in and com- plete a usucapio pro herede by a year's possession of the effects of the inheritance (supra, p. 692). Even at the time when the Edict was closed it was not necessarily more than a provisional grant ; for, if heirs-at-law of the deceased appeared and proved that, although the testament bore on the outside the requisite number of seals, yet in fact some solemnity of execution, such as thefamiliae venditio or testamcnti nuncupatio, had been omitted, the grantee had to yield them up the possession that had been given him pending inquiry. It was only by a rescript of Marcus Aurelius's that it was declared that a plea by the heir-at-law of invalidity of a testament on the ground of defect of formalities of execution might be defeated by an exceptio doli, on the principle that it was contrary to good faith to set aside the wishes of a testator on a technical objection that was purely formal. Thus was the bonorum possessio secundum tabulas, i.e., in accordance with a testament, from being originally one in aid of the jus civile, in course of time converted into one in contra- diction of it. That the motives and purposes of the series of praetors who built up the law of bonorum posscssio must have varied in progress of years is obvious ; and, once the machinery had been invented, nothing was easier than to apply it to new ideas. The praetor could not make a man heir, that he always disclaimed ; but he could give a man, whether heir or not, the substantial ad- vantages of inheritance, and protect him in their enjoyment by praetorian remedies. He gave him possession of the goods of the deceased, with summary remedies for ingathering them, which, once in his hands, would become his in quiritarian right on the expiry of the period of usucapion ; and, by interpolation into the formula of a fiction of heirship, he gave him effectual personal actions against debtors of the deceased, rendering him liable in the same way to the deceased's creditors. Another variety of the bonorum possessio was that contra tabulas, in opposition to the terms of a testament. If a testator had neither instituted nor expressly disinherited a son who was one of his sui heredcs, then his testament was a nullity, and the child passed over had no need of a praetorian remedy. Where mi heredes other than sons were passed over the jus civile allowed them to par- ticipate with the instituted heirs by a sort of accrual. But the Edict went further; for, if the institute was a stranger, i.e., not brother or sister of the child passed over, then, on the petition of the latter, the praetor gave him and any other sui concurring with him possession of the whole estate of the deceased, the institute being left with nothing more than the empty name of heir. Another l For a resumt, of the principal theories (down to 1870) about the origin of konarurn. povsessio, see Danz, Gesckichte d. rom. Rechts, vol. ii. 176. Of the later literature it is enough to mention Leist, in the first 4 vols. of his con- tinuation of Glilck's Pandecten-Commentar, Erlanjren, 1870-79. Cic., In Verr. IE., i. 45, 117. He says (writing in 684) that an edict to that effect was already iralaticium, i.e., had been adopted year after year by a series of praetors. Gaius (ii. 119) speaks of seven at least as the requisite num- ber of seals ; i.e., those of the libripens and the five citizen witnesses, and that of the anttstatus, whose functions are not well understood, but whose official designation appended to his seal recurs so regularly in inscriptions as to leave no doubt that his was the seventh. application of the bonorum posscssio contra tabulas was to the case of emancipated children of the testator's. By thefts civile he was not required to institute or disinherit them ; for by their emanci- pation they had ceased to be sui hcrcdcs, and had lost that interest in the family estate which was put forward as the reason why they had to be mentioned in the testament of their paterfamilias. The praetors although probably not until the empire, and when the doctrines of the jus naturalc were being more freely recognized put them on the same footing as unemancipated children, requiring that they also should be either instituted or disinherited, and gi -ing them bonorum possessio if they were not. It was contra tabulas in the sense that it displaced the instituted heirs either wholly or partially, wholly when the institutes were not children of the deceased, partially when they were. In the latter case, at least when sui were affected by it, the grant of bonorum possessio was under the very equitable condition that the grantees should col- late or bring into partition all their own acquisitions since their emancipation. The third variety of bonorum posscssio was that granted ab intes- tato. As has been shown on a previous page (p. 692), the rules of the jus civile in reference to succession on intestacy were extremely strict and artificial. They admitted neither emancipated children nor agnates who had undergone capitis dcminutio ; they admitted no female agnate except a sister ; if the nearest agnate or agnates declined, the right did not pass to those of the next degree ; mere cognates, kinsmen of the deceased who were not agnates, e.g., grand- children or others related to him through females and agnates cajritc mimiti, were not admitted at all ; while a wife had no share unless she had been in manu of the deceased and therefore Jiliae loco. All these matters the praetors amended, and so far paved the way for the revolution in the law of intestate succession which was accom- plished by Justinian. The classes they established were four. (1) Displacing the sui Fnetor hcrcdcs of the jus civile, they gave the first place to descendants ian ord (libcri), including in the term all those whom the deceased would of intes have been bound either by the jus civile or the Edict to institute tate su or disinherit had he made a will, i.e., his wife in manu, his natural cession (as distinguished from adopted) sons and daughters whether in potentate at his death or emancipated, the representatives of sons who had predeceased him, and adopted children in his polentas when he died. (2) On failure of libcri the right to petition for bonorum posscssio opened to the nearest collateral agnates of the intestate, under their old name of Icgitimi heredcs. (6) Under the jus civile, on failure of agnates (and of the gens where there was one), the succession was vacant and fell to the fisc, unless perchance it was usucapted by a stranger possessing pro herede. The frequency of such vacancies was much diminished by the recognition by the pnetors of the right of cognates to claim bonorum posscssio in the third place. "Who the}' had primarily in view under the name of " cognates " it is impossible to say. The epithet is most frequently applied by modern writers to kinsmen related through females ; but in its widest sense it included all kinsmen without exception, and in a more limited sense all kinsmen not entitled to claim as agnates. There were included amongst them therefore although it is very probable that the list was not made up at once, but from time to time by the action of a series of praetors not merely kins- men related through females (who were not agnates), but also agnates of a remoter degree who were excluded as such because the nearest agnates in existence had declined, persons who had been agnates but by reason of capitis minutio had lost that character, female agnates more distantly related than sisters, and children of the intestate's who at the time of his death were in an adoptive family. All these took according to proximity. (4) Finally, the claim passed to the survivor of husband and wife, assuming always that their marriage had not involved manus. This list constituted the praetorian order of succession on intestacy. All these bonorum possessioncs had to be formally petitioned for. In that ab intcstato descendants were allowed a year for doing so, while other persons were limited to 100 days, the period for those entitled in the second place beginning when that of those entitled in the first had expired, and so on. The grant was always made at the risk of the petitioner ; nothing was assured him by it ; it might turn out real and substantial (cum re) or merely nominal (sine re), according as the grantee could or could not maintain it against the heir of the jus civile. For the latter was entitled to stand on his statutory or testamentary right, without applying for bonorum posscssio, although in fact he often did so for the sake of the summary procedure it supplied him for ingathering the effects of the deceased. The Law of Procedure. The substitution of the formular system Law c of procedure for that by the "actions of the law" commenced long pro- before the end of the period now under consideration ; and we have cedun had occasion more than once to observe how greatly it facilitated the development of the institutions of property and contractual obligation. But as the change was only completed in the early empire it will be more convenient to defer explanation of the nature of the new procedure in the meantime. (See infra, p. 707 sq. )